Crime Fix with Angenette Levy - 9 Shocking New Details in Bryan Kohberger's Case

Starting point is 00:00:00 Wondery Plus subscribers can binge all episodes of this law and crimes series ad free right now. Join Wondery Plus in the Wondery app, Apple podcasts or Spotify. Your Honor, we're here because the state has alleged that a single piece of evidence ties Mr. Koberger to this case. Brian Koberger returns to court hoping to get the evidence the state has collected against him thrown out as his lawyers reveal new details about the night of the murders. This witness has claimed that she's not sure what she heard or saw was real or whether it's it was at a dream. And prosecutors are firing back. We know it wasn't a dream because they found the evidence, discovered the next morning. Welcome to Crime Fix. I'm Anjanette Levy. Brian Koberger's quadruple murder trial

Starting point is 00:00:53 is scheduled to begin this summer. But if his lawyers get their way, this trial won't start at all. Koberger's lawyers are trying to get most, if not all of the evidence in the case thrown out. And they've revealed a lot of new information about the, of the evidence in the case thrown out, and they've revealed a lot of new information about the night of the murders. I'll get to that very shortly. Koberger's lawyers spent two days arguing, questioning witnesses, and presenting evidence to Judge Stephen Hippler about a number of things, including investigative genetic genealogy. That's how Koberger was identified as a suspect. Koberger's lawyers also claim that Moscow police officers misled a magistrate in their affidavits when applying for search warrants and when seeking

Starting point is 00:01:31 the warrant for Koberger's arrest. Koberger is accused of murdering four University of Idaho students, Maddie Mogan, Kayla Gonsalves, Ethan Chapin, and Zanna Kernodle at a house near campus in November of 2022. He says he's innocent. The crime was horrific, and police have said in a probable cause affidavit that Koberger's DNA was left on the snap of a K-bar knife sheath left next to Maddie Mogan's body. Now, the FBI used that DNA to search genetic genealogy databases, which led to Koberger's ancestors and eventually to him. Koberger's lawyers say the FBI's process violated his rights, but the prosecution disagrees. Here's a little bit of attorney Ann Taylor arguing on behalf of Brian Koberger. Your Honor, our position is that the court should suppress the IgG identification and everything that flows from that. This is

Starting point is 00:02:28 supported by Fourth Amendment of the United States Constitution, due process, Article 1, Section 17 of the Idaho Constitution. There was no warrant for several phases of the search that led to the IgG work, investigative genetic genealogy. And we think every single one of those stages, a warrant was required, none was given. And so this must be suppressed. Now, the defense maintains the investigative genetic genealogy work performed by the FBI violated Koberger's rights because agents access databases of companies that may not have permitted them to do so, which violated the terms of services for those companies.

Starting point is 00:03:08 Let's say my DNA is taken lawfully. What privacy interest do I have in the search of the DNA of others? That's a loaded question. Why is it a loaded question? Isn't it a factual question? Well, it is, Judge, but you're assuming that the DNA was taken lawfully, and our position... I agree. That part is an assumption. In my hypothetical, I said my DNA was taken lawfully. Why would I have standing to object to the search of other people's DNA simply because

Starting point is 00:03:48 I might share some genetic information with them because they are distantly related to me? Well, Your Honor, our position is that this work was not done lawfully, that it was unlawful, that there needed to be a warrant, that this was done outside of a warrant. And I'm not asserting on behalf of anybody else in this, any relative, anybody who might have been named or not named. For its part, the prosecution says Brian Koberger's Fourth Amendment rights are what matter here. And the state says those rights were not violated.

Starting point is 00:04:24 Even assuming that that's all correct and that they violated the terms. Seems to be the evidence. The terms of service, Your Honor, don't affect the Fourth Amendment. The terms of service, and certainly Mr. Koberger does not have standing to raise a violation of the terms of service. And even if he did, the remedy for the terms of service is not a violation of the Fourth Amendment. As we argued in our brief, the individuals, and as came out in testimony today, the individuals who are utilizing these databases, and we're talking about millions of them, are willingly sharing their information with each other, with millions of other people.

Starting point is 00:04:58 Isn't there a subset that says, but I don't want these people to look at it? In some of the data, the FBI, as I understand the evidence, then says, okay, we agree, we won't search those ones. So I'll address that part, but on the database piece, the issue is that no one sharing this information with millions of other people could have a reasonable expectation of privacy. The test for that isn't, people could have a reasonable expectation of privacy.

Starting point is 00:05:29 The test for that isn't do they have a reasonable expectation of privacy against law enforcement? It's against the public writ large. Judge Hippler has been presiding over this case now for several months, and he has a way of putting both the defense and the state on the spot when they make their arguments. And he did it right here. IGG was used in this case. And yes, it did point to the defendant. But the fact that that happened doesn't mean that there was a violation of the Fourth Amendment. Unless the court has any questions, you're asked to deny the motion to suppress. If the FBI, in fact, violated the Fourth Amendment rights of Mr. Kober,

Starting point is 00:06:04 you would agree the state is burdened by that? That's a great way of putting it, Your Honor. Yes, the state would be burdened by that. Yes. It's safe to say our stories prove the world is unpredictable and having a great lawyer really matters. That's where Morgan & Morgan, the exclusive personal injury law firm of law and crime, comes in. This is a firm with more than a thousand lawyers because they win a lot. In the past few months, Morgan & Morgan won a $29 million verdict for a cyclist in Philadelphia, a $2.7 million verdict for a car accident victim in Florida, and a $5.6 million verdict for a car crash victim in Georgia after the insurance

Starting point is 00:06:46 company offered their client $0. Even if you think your case isn't worth millions, why not start a claim and fight for what you deserve? Morgan & Morgan makes it so easy. You can start a claim from your phone in just eight clicks. So if you're ever hurt, you can easily start a claim at ForThePeople.com slash Crime Fix or click the link in the description and pinned in the comments. Then Ann Taylor revealed what one of the surviving roommates told police about the night of the murders. Taylor did this because she wants a Franks hearing to determine whether police lied to get search warrants. Taylor listed a number of instances where she said the officers misled the magistrate when writing their affidavits. This probable cause affidavit talks about

Starting point is 00:07:33 an interview they had where the person that was interviewed said that she heard things and saw things within her house. But what is written in the probable cause affidavit is seriously lacking in detail. It's wrong and it's false in many places. The way the affidavit reads, it says, this person stated she went to sleep. On the second floor, she was awoken at four by what she stated sounded like one of the victims playing with the dog, which was on the third floor. A short time later, she thought she heard one of the victims say something. That caveat, she thought she heard, is a problem.

Starting point is 00:08:29 That's not at all what was said. This person was interviewed shortly after 911 was called in the afternoon of November 13th, 2022, and she was sure. I'm at Defendants Exhibit 8A, page 281, lines 4 through 10, when this witness was sure that she heard this particular victim go down the stairs, go up the stairs, and then come running back down the stairs. That is not what's contained in this affidavit at all. Now, this is really interesting information that we hadn't heard before. Taylor went on to explain why she believes this discrepancy is important. That is important because that's misleading to the judge. That waters down what was said. And that matters in the probable cause affidavit because the officers, when they wrote this, knew that wasn't the case.

Starting point is 00:09:34 They knew this particular person that DM said was upright and running down the stairs, that that's not what happened. That person was killed in the bed and never left the bed. And so the officers water that down because they know that fact is wrong, but they don't tell the magistrate that. They also don't tell the magistrate that this witness has claimed memory problems, that this witness has claimed that she's not sure what she heard or saw was real or whether it was at a dream. So Ann Taylor is saying the surviving roommate claimed to have memory problems and that she didn't know whether what she recalled was a dream or not. Taylor is questioning the surviving roommate's credibility. There are two references to not remembering. A couple of days later, there's a third interview,

Starting point is 00:10:27 and there's references to not remembering, being drunk, a statement, I don't know any of it, like half this stuff. I don't know if it's a dream or if it's real. That's at page 399. At page 406, I don't know if this was real or in my mind was just like playing with me. But from what I think I heard, someone was crying in the bathroom. These are definite statements that were not given to the magistrate and in fact were brushed over. And credibility is really, really important when that person is relied on in the investigation. But the prosecution defended the

Starting point is 00:11:06 surviving roommate's statements to the judge, saying her description of the man she saw in the house wearing all black never changed. The person was a slim, skinny, lean build. And the person was about, was taller than she was, is, around 5'8". That's what's important. It was that general description. And that general description did not change. Is it also important to establish the timeline? It is.

Starting point is 00:11:55 It's important to establish the timeline to know when the timeline matched the vehicle surveillance of when a suspect vehicle is coming into the area of 1122 and then leaves, as well as text communications of her relaying what she's observing during the same time period. So you heard right there. Assistant Prosecutor Ashley Jennings said one of the surviving roommates was texting what she was seeing. That is really interesting and had been rumored on social media. Jennings continued. The defendant argues when an eyewitness states she's not sure anything she saw was real, a magistrate should know about it. Well, the simple answer is investigators knew what she saw was real, and we know it wasn't a dream, because they found the evidence, discovered the next morning. Those statements didn't need to be included in the PCApidavid because they weren't exculpatory. They didn't support this idea that this didn't really happen, that somehow we got it

Starting point is 00:13:09 wrong. The probable cause affidavits also contain information about Brian Koburger's cell phone records. And it really made it sound like he was near the house on King Road a dozen times. But Ann Taylor is saying that's another way that the officers misled the court. Based on those records, they absolutely knew that Mr. Koberger wasn't around that residence, wasn't parked near the residence, didn't stop and have his phone in a stationary position at that residence. They absolutely knew that that's not what was happening but they put it in there to make a connection that didn't exist they put it in there so that the judge would think that this was the right person and they shouldn't have done that but then you have this false narrative that looks like stalking that that looks like following, and it's not true, that is extremely damaging. It's very misleading. It's an outright lie to the magistrate. When you

Starting point is 00:14:15 omit that kind of information, when you take that context out, you might as well say stalking because that's what you're trying to say and you know that's not true. But the prosecution says the officers did not misstate the evidence about those cell towers. Here's what is in evidence though and based off of the PC affidavit is that the phone was in the area for the tower that provides service to the 1122 residents. Still maintain, that's true. Regardless, none of this has any bearing on the validity of the search warrant. Their argument is merely a clarification

Starting point is 00:15:06 about which member did what work. And that doesn't matter to the ultimate determination for probable cause. Now, when it comes to the issue of probable cause, the judge asked this very pointed question. When there's a DNA match between the DNA and the sheath and Mr. Koberger, isn't that probable cause every day and twice on Sunday?

Starting point is 00:15:38 Not in this context. Not in this context because of the IgG work. The defense is also trying to get evidence from Koberger's arrest in Pennsylvania at his parents' home. I mean, they were quite safe and there was simply no reason to bash the doors in momentarily after yelling from their bearcat. There's two issues. There's officer safety. There's also destruction of evidence concerns. In the cases that we cited, Judge, when the claim has been that there's evidence being destroyed, the evidence, what's known to the officers is something along the lines of, here, somebody running away after they announce themselves. It's not typical that the police simply don't knock and announce at all in those cases. They usually give the person the opportunity to surrender,

Starting point is 00:16:47 but it's not a particularly long one. And in this case, they don't do that at all. And the only thing they knew is that he's walking around from room to room and that he has some kitchen gloves on. And I don't think that that equates necessarily to the destruction of, you know. That's not all they knew, but I won't go into the detail in order to. I want to bring in Philip Dubé. He works as court appointed counsel

Starting point is 00:17:10 in Los Angeles County. So Philip, I want you to talk to me a little bit about this whole issue that Koberger's attorneys are talking about, you know, the no knock warrant when he was arrested at his parents' house in Pennsylvania. His attorneys are saying it was overkill.

Starting point is 00:17:25 It violated his rights. What are your thoughts on that? Well, even assuming that it was overkill and it violated his rights, the U.S. Supreme Court has already spoken on this issue. It was back in 06 in a case called Hudson v. Michigan. And that involved the search of a residence with a warrant. And they did not sufficiently knock and announce their presence before raiding the residence.

Starting point is 00:17:49 And what the court said is that suppression of the evidence is no longer a remedy for the technical violation. The rule exists really just, first of all, that there is a fear that maybe the people inside are dangerous, that they have a weapon or that there could be imminent destruction of evidence or that someone could escape. And the fact that somebody didn't knock and wait a few seconds before barging in or waiting for them to open up the door is too technical of a violation constitutionally to say the remedy should be to throw out everything recovered in the property. So the remedy, if any, really is in tort law or in civil rights litigation in the civil courts. So I don't believe that their motion has merit as ignominious and as offensive it may have been to go in there at that hour or whatever hour it was, doesn't violate the Fourth Amendment. It might violate local tort law or federal civil rights laws, but nothing in the criminal context. And they made it sound like, you know, the judge said, you know,

Starting point is 00:18:57 that's not all they knew when Jay Logsdon, the defense attorney, said, you know, all they knew, you know, they had a drone up. They saw he was in his kitchen. You know, he was walking around with kitchen gloves on. And the judge said, that's not all they knew. We know that there was a gun seized from the Koberger home. So it sounds like there was more to this. And the detective also said things changed that day where they where they basically decided to do no knock. And there were some other circumstances. But they're kind of

Starting point is 00:19:25 keeping that all under wraps right now, I'm assuming because they don't want to taint the jury pool. Well, that and, you know, frankly, they don't want to give their hand away because you'd be amazed how many people out there who are listening could call in false tips. They could try to sabotage the case, try to emerge, if you will, as this last minute kind of witness. And by keeping things mum and limited to what's in the pleadings, it really furthers the truth seeking process. And if we're honest, Anjanette, in the end, the police got a warrant. I could see if maybe they went in there without a warrant and felt that there was some type of an emergency situation. But a judge or a magistrate already signed off on their probable cause affidavit and found that there was sufficient evidence to go in there. And to say that nothing will be

Starting point is 00:20:15 admissible in court just because they didn't knock or wait a few seconds or announce their presence, Hudson v. Michigan says no can do anymore under Fourth Amendment jurisprudence. I want to move on now to the motion for a Franks hearing. Basically, you know, the defense is trying to show that they are owed this hearing. They're trying to say that officers misled the court when they went and got search warrants, you know, when they were writing affidavits for a probable cause. They say that the roommate, one of the surviving roommates, made some statements and that she was saying things like, I don't know if what I remember, if I imagined it, if it was a dream or if it was real.

Starting point is 00:21:00 They're acting like, you know, information that this roommate said was left out of the affidavit and that that would have maybe not added up to probable cause. You know, the prosecution counters and says, no, that's not true. You know, her description of the suspect never changed. What are your thoughts on Ann Taylor's arguments there when she's revealing all of this new information about what that surviving roommate said? Well, first of all, the statements in the affidavit to qualify for traversing the warrant have to be knowingly false and they have to be material. There's always going to be I don't want to call them lies or falsities, but maybe some misrepresentations, some inaccuracies in affidavits. The question is, if you sever those inaccuracies from the affidavit, is there still sufficient facts to find probable cause? And I believe that was the prosecution's argument. Let's just give

Starting point is 00:21:59 them that. But there was nothing flagrant, nothing knowingly misleading about what the roommate may have remembered or saw, because at the end of the day, all that really matters, they have four dead people in that house. I mean, seriously, there is enough right there to suggest that a crime has been committed and that by going in, you might be able to solve it, get some leads, find something to lead to the identity of the perpetrator. So I think in the end, the court's not going to traverse the warrant, but instead might say, look, I might sever some of this, but I'm going to find nonetheless that there's still sufficient probable cause to allow this warrant to survive. And the judge basically said, you know, isn't his DNA on the knife sheath probable cause every day and twice on Sunday? And then Taylor responds and says, not in this context because of the investigative genealogy work. So that was her response.

Starting point is 00:22:59 But the judge is basically saying they have probable cause all day long just because of his DNA being on the knife sheath. Exactly. I mean, if the DNA was not on that knife sheath, let's be honest, Anjanette, I don't even believe that prosecutors would have even filed a case. There just would not have been enough evidence. Certainly there's a lot of suspicion and there might be probable cause to suggest that he was involved and certainly that the crime has been committed, but not enough for prosecutors to say we have enough to proceed beyond a reasonable doubt. And their ethical obligations require them to assess a case pre-filing for a determination of proof beyond a reasonable doubt as opposed to just probable cause.

Starting point is 00:23:44 And I am telling you that that DNA on that sheet next to or underneath one of the victims is enough to sink him. The judge basically said he doesn't know if he's going to schedule a Franks hearing. He doesn't know if they've met their burden. And so, you know, he's going to have to go back and review this. But he asked them for dates in the next few weeks in case he does schedule this hearing. What's your feeling on that? I mean, because Ann Taylor threw a lot out there. She's talking about the cell phone information, that that was misrepresented as her client stalking the victims, all of this stuff. She's talking about other people's blood, male blood found in the house. The know, the prosecution had said in some prior documents that it wasn't suitable to upload the CODIS. They couldn't even identify, you know,

Starting point is 00:24:31 who it may have belonged to, that type of thing. Well, for purposes of due process and judicial ethics, judges should not announce ahead of time which way they are leaning without having reviewed everything, without having heard both sides. The judge was smart by saying, we're going to set this for a hearing and he'll reserve ruling until he has read and heard all argument. So for now, I think what he's saying is you better bring me something because based on what I'm seeing and what I'm reading, you haven't met your burden. But he didn't quite go that far with saying that because if we're honest, it would be unethical. And I think it would violate canons of ethics to rule

Starting point is 00:25:10 before you've even read and heard everything. So the judge was smart. He did seem to, Judge Hippler did seem to throw some cold water on the IgG arguments, although he did seem to think that they violated the terms of service. Violating terms of service for genetic genealogy databases is a whole lot different, Philip, than violating somebody's Fourth Amendment rights. So he did push both sides on that issue, but he didn't seem to really be buying what the defense was selling. No, there's a few buckets of remedies here when police do things unlawfully. Number one, there is suppression of evidence in a criminal case. Or number two, if the violation of whatever

Starting point is 00:25:53 the police did amounted to a breach of a contract, that's a separate analysis in the civil context. Or if what the police did merely amounted to a civil tort, that is a different analysis. The question here is, did Brian Koberger even have legal standing to suppress the IGG evidence? And even if he did, let's just pretend that he did. In other words, he has a subjective and objective expectation of privacy in the data in those genealogy databases. The question then becomes, is there an exception to the exclusionary rule? In other words, something that would undo the taint of the poisonous tree caused by the police misconduct. And the court's going to look to various exceptions, such as the attenuation doctrine. Let's just pretend that what the police did was illegal and they came up with

Starting point is 00:26:50 this whole family tree. The question then is, is the discovery of the family tree so far attenuated from the illegality that you can deny suppression? And I think it's very possible that if the court finds that Brian does have standing, that the discovery of the genealogy type genetic data is so far attenuated from the illegality that exclusion is not the remedy. And you have to understand there's always going to be some type of remote discovery of things flowing from an illegality. That's the whole point. It would be different if they found his DNA directly in the database. Then the question becomes, did they need a warrant? But the fact that they found somebody else's DNA that had some matching genetic components to him, I think the court's going to find that that is enough, not enough

Starting point is 00:27:45 rather, to say that suppression is the remedy. And frankly, I'm going to bet that this judge finds that he doesn't even have standing. And the reason why is that the right to suppress has to be personal to him and that the thing that he is seeking to suppress has to be personal to him. The courts have held since Rakers v. Illinois that if the item that's being searched or seized is not yours, you don't have standing. You cannot assert the rights of third parties who may have had a privacy violation. Unless those people are being prosecuted and unless those people seek to enforce their rights, some unrelated defendant has no remedy. Well, we will keep an eye on it and see what Judge Hippler decides. Philip Dubé, thank you so much.

Starting point is 00:28:38 Take care. And that's it for this episode of Crime Fix. I'm Ann Jeanette Levy. Thanks so much for being with me. I'll see you back here next time.

Crime Fix with Angenette Levy - 9 Shocking New Details in Bryan Kohberger's Case

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